M.L. Gupta and Others vs Instrumentation Ltd. and Others

S.B. Sinha, J.—In this writ application, 87 Petitioners who are employees of Respondent No. 1 company have prayed for issuance of an appropriate writ, order or direction commanding upon the Respondents to consider then cases for regularisation of their services in the regular employment by giving retrospective effect that is from the date of their appointments in the Establishment and further directing them to pay equal pay for equal work.

Benefit of all unnecessary details, wm fact of the matter lies in a very narrow compass.

The Respondent No. 1 is an instrumentality of the State being owned and controlled by the Government of India and, thus, is a ''State'' within the meaning of Article 12 of the Constitution.

The Petitioners are daily rated employee. Allegedly in the year 1981, the services of 109 out of 150 persons who were semi-skilled and highly skilled daily rated workmen who were junior to the Petitioners were regularised similarly, in the year 1983, services of 41 workmen including 23 unskilled workmen were regularised. The Petitioners have contended that they have been working since 1969 continuously. A chart has been annexed which is Annexure 2 to the writ application showing the designation, dates of joining, reference No. and present salary of each of the Petitioners.

The Petitioners have contended that they are in continuous services of Respondents No. 1 without any break. The Petitioner have alleged that by reason of a purported settlement dated 20th June, 1987 which is contained in Annexure-7 to the writ application, services of the aforementioned 150 workmen were regularised. The Petitioners have contended that the said settlement is not valid d they had not put their signatures thereon d their signatures are forged and fabricated. It was further contended that the said purported settlement dated 20th June, 1987 is not a genuine settlement as Bokaro unit of All India Instrumentation Ltd. was dissolved on 12.4.1986.

It appears that Petitioners earlier filed a writ application in this Court which was registered as C.W.J.C. 268/87R. In the said writ implication, Respondent No. 1 contended that grievances of the Petitioner have already been redressed and in that view of the matter, the Application was permitted to be withdrawn. This Court while permitting the Petitioners to withdraw the writ application in terms of its order dated 28.4.87 observed:

On the contrary, if it is hereinafter found that the statements made in the counter affidavit and the submissions made on behalf of the Respondents is not correct, the Petitioners will be at liberty to move this Court for taking appropriate steps including holding the Respondents for a contempt of this Court.

The Petitioners have contended that despite the said assurances, their services were not regularised nor were they paid the same salary which are being paid to the regular workmen and thus they had filed an application for initiation of a proceeding under the attempt of Courts Act against the Respondent being MJC 153 of 1987 R, but by an order dated 8.4.1988, the said application was apposed of with an observation that the Petitioners may move this Court again if they were so advised. The Petitioners have filed the present writ application pursuant to the said observations.

A counter affidavit has been filed on behalf of the Respondents. In the said counter affidavit, it was inter-alia contended that Respondent No. 1 is not a State within the meaning of Article 12 of the Constitution of India.

It was further contended that a settlement dated 20th June, 1987 which is contained in Annexure-7 to the writ application has been arrived at by and between the Respondents and the casual labourers represented by All India Instrumentation Limited Project Employees Union, Bokaro unit in presence of the Joint Labour Commissioner whereby the Respondents agreed to regularise the services of the 100 workmen and to offer regular scales of pay upon due selection. According to the Respondents, the said settlement has been implemented. It was further contended that the Petitioners cannot be permitted to challenge the regularisation of the employees which took place in the years 1981 and 1983.

The Respondents have further contended that in pursuance of the said tripartite settlement dated 20th June, 1987, the Management invited applications for filling up 100 posts in various trades, and the services of various employees were regularised trade wise, keeping in view the qualification and experience of the employees. It was further averred that all the daily rated workmen including the Petitioners were given opportunities to make application for their regularisation in a particular trade wherefor a Board was constituted and a merit list was prepared and orders of regularisation have been passed in accordance with the merit list. It was stated that there is no sanctioned post and vacancy in the establishment of the Respondent No. 1 to acommodate all the Petitioners and other casual labourers. The Respondents have further denied that the nature and quality of the job performed by the Petitioners are same and similar as that of regular employees, so as to invoke the doctrine of equal pay for equal work.

It was further contended that in accordance with the said settlement, the Petitioner have become temporary employees under Respondent No. 1.

Mr. A.P. Chatterjee learned Counsel appearing for the Petitioners submitted that as admittedly the Petitioners are in continuous services without any break for a period of 20 years, they should have been regularised by the Respondent No. 1. learned Counsel next contended that the stand of Respondent No. 1 to the effect that workmen are being regularised keeping in view their trade wise seniority is contrary to the principles laid down by the Supreme Court in various decisions in as much as there are three categories of workmen, namely, skilled, semi-killed and unskilled. It was further submitted that it is not a case where the workmen, were employed without any scrutiny whatsoever in as much as prior to their appointment, names were called for from the Employment Exchange and they were appointed upon taking interview etc.

In this connection, reference was made to Annexure-3 to the writ application.

Learned Counsel, has in this connection strongly relied upon decisions of the Supreme Court in Daily Rated Casual Labour Employed under P and T Department Vs. Union of India (UOI) and Others, , Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, ; Bharat Petroleum (erstwhile Burmah Shell) Management Staff Pensioners and others Vs. Bharat Petroleum Corporation Ltd. and others, , Dhirendra Chamoli and Another Vs. State of U.P., ; Surender Singh and Anr. Engincer-in-chief CPWD and Ors. (1986) SCC 639 and Jacob M. Puthuparambil v. Kerala Water Authority and Ors. (1991) SCC 28.

Learned Counsel further contended that when the appointments were made in accordance with the rules, seniority must be counted from the date of their appointment. In this] connection, reliance was placed upon The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, .

learned Counsel submitted that consideration of the case of regularisation of the individual workman on the basis of tradewise seniority would lead to an absurd result in a much as some persons who have been continuously working since 1969 might have been placed in a particular trade in the year 1985 and thus his seniority in that trade would COUNTED FROM that date, as a result whereof the entire period while he had been disease ring other duties would not be counted.

It was further submitted that even if it be held that the purported settlement was legal, in view of the doctrine of ''equal pay for equal work'', the difference in the scale of pay of two groups of employees doing the same job must be held to be unreasonable and violative of Article 14 of the Constitution of India, and the Petitioners are entitled to maintain this writ application, despite the fact that such a settlement is in existence. Reliance in this connection was placed upon Mackinnon Mackenzie and Co. Audrey D'' Costa reported in 1987 Lab & I.C. 961.

learned Counsel further submitted that in this case it would be evident that the purported settlement as contained in Annexure-7 to the writ application was not sent to the prescribed authorities in terms of Rule 61 of the Industrial Disputes (Bihar) Rules, and in that view of the matter the settlement having been arrived at in violation of law, the same should be ignored. According to the learned Counsel, there is nothing on records to show that the persons who represented the workmen were authorised by them in this behalf. It was further submitted that in any event, as the Bokaro branch of the Union in-question had'' already been dissolved, it was for the Management to show that all procedures relating to a valid settlement were complied with.

Learned Counsel in this connection has referred to Workmen of Delhi Cloth and General Mills Ltd. Vs. The Management of Delhi Cloth and General Mills Ltd., and in Brooke Bond India Ltd. Vs. The Workmen, .

Mr. K.D. Chatterjee learned Counsel appearing for the Respondents on the other band, submitted that in view of the fact that no foundational facts have been stated by the Petitioners as to how the Respondent No. 1 is a ''State'' within the meaning of Article 12 of the Constitution of India, this writ application should be dismissed on that ground alone.

It was further contended that in view of the fact that a settlement has been arrived at by and between the employer and the work-Den, this Court in Exercise of this writ jurisdiction should not interfere therewith.

Learned Counsel further submitted that Soma letter dated 21.4.1985, issued by the Ministry of Labour as contained in Annexure-''E'' to the counter affidavit, it would appear that the cases of the concerned workmen were referred for consideration before the Conciliation Officer. It was further submitted that from a perusal of letter dated 8.5.1987 as contained in Annexure-''F'' to the counter affidavit, it would appear that 187 out of 276 persons filed an application before the Conciliation Officer for holding conciliation proceeding inter alia in relation to their demands of regularisation of their services and in pursuance thereof the settlement (Annexure-7) was arrived at.

Learned Counsel further submitted that as under the Industrial Disputes Act, a settlement is entered into by and between the Management and the workmen, the question as to whether they were represented by the Union or not is wholly irrelevant in view of Section 18 thereof.

Learned Counsel pointed out that from Annexure ''F'' to the said counter affidavit, it would appear that even the Petitioners were signatories thereto and by way of example my attention to item No. 67 thereof was drawn to show that Petitioner No. 1 is a party to the demand raised and thus was a party in the matter of raising, an industrial dispute.

In short, learned Counsel contended that as a demand questioning the validity of the settlement (Annexure-7) and/or other demands can be raised as an industrial dispute and adjudicated upon by taking recourse to the procedures laid down under the Industrial Disputes Act, this Court should not embark upon an industrial adjudication.

Learned Counsel in this connection has upon a decision of the Supreme Court in Basant Kumar Sarkar and Others Vs. Eagle Rolling Mills Ltd. and Others, .

With regard to the question of ''equal pay for equal work'' learned Counsel submitted that for adjudication of the said question, an enquiry is necessary wherein parole evidence may have to be led in order to come to the conclusion as to whether the job performed by a casual workman is same and similar to those performed by the regular workmen.

It was further submitted that the question of services of the workmen depends upon number of vacancies and other relative factors and in that view of the matter, this Court should not direct all the casual employees to be regularised. It was also submitted that the procedure adopted for regularisation of the employees depending upon the existing vacancy and the need of the employer as laid down in the settlement dated 20th June, 1987 as contained in Annexure-7 to the writ application, is a reasonable one and, thus; the same does not offend Article 14 of the Constitution of India.

According to the learned Counsel, the settlement as contained in Annexure-7 to the writ application is binding upon all concerned in view of Section 18(3) of the Industrial Disputes Act. learned Counsel submitted that a demand was made before the Conciliation Officer on behalf of the entire body of casual workmen and pursuant thereto the said settlement was entered into in course of the conciliation proceeding wherein it had been decided that the services of 100 persons would be regularised and for the rest a scheme of voluntary retirement was formulated.

It was further submitted that the Petitioners did not file an> application when invitation was made for regularisation of the services of 100 persons.

It was also submitted that Sri R.P. Tiwary who represented the Petitioner as Secretary of Bokro Progressive Front and sponsored the dispute on behalf of the Petitioner had filed a writ application in this Court being C.W.J. No. 1975 of 1988R challenging the said settlement, but this Court by an order dated 12.3.1991 which is contained in Anuexure-9 to the supplementary affidavit filed on 12.3.1991 dismissed the said application and thus the self-same question cannot be permitted to be raised in this application.

It was submitted that the question as to whether the settlement is just or not would not fall for consideration in this writ application in as much as for deciding such a matter, and, particularly, in a case where the Respondent No. 1 employs casual workmen for carrying out the contract job, their need for permanent workmen may vary from contract to contract, job to job and place to place which is a managerial function and such a function cannot be usurped by this Court.

In this situation, it was submitted, that the High Court should not exercise its original jurisdiction and leave the dispute to be adjudicated upon under the provisions of Industrial Disputes Act, 1947.

In view of the rival contentions of the parties, the following questions arise for consideration in this writ application:

(A) Whether Respondent No. 1 is a ''State'' within the meaning of Article 12 of the Constitution of India?

(B) Whether this Court in exercise of its writ jurisdiction can quash the tripartite settlement?

(C) Whether the alleged tripartite settlement (Annexure-7) is legal and valid?

(D) Whether, even assuming that the said settlement is valid and genuine and, thus, binding upon the Petitioners, they are entitled to invoke the doctrine of ''equal pay for equal work'' on the ground of violation of their fundamental rights as enshrined under Articles 14 and 21 read with Article 39(d) of the Constitution of India?

(E) Whether this Court in exercise of its power under Article 226 of the Constitution of India can grant the relief to the Petitioner by issuing a writ of mandamus directing the Respondents to regularise the services of the Petitioners?

Ref. Question No. A:

The Petitioner in paragraph 4 of the writ petition stated that Respondent No. 1 is a Government of India enterprises and, thus an ''instrumentality'' of the State being owned and controlled by the Government of India. In the counter affidavit, the Respondents have merely contended that Respondent No. 1 is a company incorporated under the Indian Companies Act, 1956 and, thus, is not a ''State'' within the meaning of Article 12 of the Constitution of India.

According to Mr. K.D. Chatterjee the Petitioner in this writ application has not pleaded jurisdictional facts stating as to how Respondent No. 1 is amenable to the writ jurisdiction of this Court. There cannot be any doubt that the Petitioners are bound to plead the requisite jurisdictional facts in the writ application in order to obtain the necessary relief. However, in this case, the allegations made by the Petitioners to the effect that Respondent No. 1 is a Government of India Enterprises and it is owned and controlled by the Government of India has neither been denied nor disputed and thus the same would be deemed to have been admitted.

Respondents in their counter affidavit have also not stated that they are not within the pervasive control of the Central Government. In this situation, in'' my opinion, Respondent No. 1 must be held to be a ''State'' within the meaning of Article 12 of the Constitution and, thus, amenable to the writ jurisdiction of this Court.

Ref. Question Nos. B and C:

Section 2(p) of the Industrial Disputes Act reads as follows:

"Settlement'' means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereof in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the Conciliation Officer.

From a perusal of the aforementioned provision, it would appear that the term ''settlement'' not only embraces within its fold a settlement arrived at in course of the conciliation proceeding, but also an agreement entered into by and between the parties thereto.

In terms of Sub-section (3) of Section 18 of the Industrial Disputes Act, a settlement inter alia, arrived at in the course of conciliation proceeding is binding upon all parties to the Industrial dispute

This aspect of the matter has been fully considered in a recent decision of the Supreme Court in Barauni Refinery Pragatisheel Shramik Parishad Vs. Indian Oil Corporation Ltd., where in the Supreme Court held as follows:

It may be seen on a plain reading of Sub-sections (1) and (3) of Section 18 that settlements are divided into two categories namely, (i) those arrived at outside the conciliation proceedings and (ii) those arrived at in the course of conciliation proceedings. A settlement which, belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all parties to the industrial dispute to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. Therefore, a settlement arrived at in the course of conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent it departs from the ordinary law of contract. The object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. There is an underlying assumption that a settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made binding not only on the workmen belonging to the union signing the settlement but also on others. That is why a settlement arrived at in the course of conciliation proceedings is put on par with an award made by an adjudicatory authority.

A settlement, thus, arrived at in course of conciliation proceeding is binding upon all parties to the industrial dispute.

It is true that the Petitioners have disputed their signatures on the demand raised on their behalf by All India Instrumentation Ltd. Projects Employees Union dated 8.5.87 as contained in Annexure-F to the counter affidavit. However, the question as to whether the workmen have put their signatures on the said demand or not being a seriously disputed question of fact which requires parole evidence and thus cannot be and should not be decided by this Court in exercise of its writ jurisdiction.

From a perusal of I lie aforementioned demand dated 8.5.87 it is evident that a demand was raised so that a tripartite settlement may be arrived at. The said letter allegedly contains signatures of 187 workmen out of 276 workmen.

Thus, it is evident that requisite number of workmen had already agreed to enter into a tripartite settlement. A Settlement within the meaning of Section 2(p) of the industrial Disputes Act is in two parts. The first part refers to a tripartite settlement entered into in course of the conciliation proceeding. The second part refers to a settlement which has been arrived at by the Management and the workmen otherwise than in course of conciliation proceeding. Only in the latter case, the procedures prescribed by the rules framed by the appropriate Government are required to be followed. From a letter dated 21.4.1985 issued by the Chief Labour Commissioner of the Ministry of Labour, Government of India and addressed to the Deputy Labour Commissioner, Bokaro Steel City, it appears that the latter was requested to take action in relation to the five points demand raised by Sri Sadanand Jha, Organising Secretary of All. India Instrumentation Ltd. Project Employees Union of Bokaro Steel City Branch. The said letter is contained in Annexure-E to the counter affidavit. A copy of the said letter dated 26.4.1985 was also forwarded to Sri Sadanand Jha.

The Respondents have categorically stated that the aforementioned settlement as contained in Annexure-7 was arrived at in course of the conciliation proceeding. The said settlement as contained in Annexure-7 also shows that the same was entered into in course of conciliation proceeding held by the Joint Labour Commissioner, Government of Bihar, Patna on 20th June, 1987.

In this View of the matter, therefore, it cannot be said that only because allegedly the Bokaro branch of the aforementioned Union was dissolved, the settlement is invalid. In any event, in my opinion, such a question cannot fall for determination is a writ application inasmuch as the same requires investigation of disputed facts.

Further, the Petitioners themselves in paragraph 17 of the writ application have contended that they raised the demand with the Management on 21.10.86 through the General Secretary of Bokaro branch which is contained in Annexure-4 to the writ application; from a perusal whereof it appears that one B.K. Tiwary raised six points of demand with the Management.

From Annexure-17 to the supplementary counter affidavit filed on behalf of the Respondents, it appears that the aforementioned B.K. Tiwary filed a writ petition in this Court being C.W.J.C. 1979/88R which was permitted to be withdrawn by a Division Bench of this Court by an order dated 5.10.1988.

There cannot be any doubt that a settlement would be illegal, if the same has been entered into in violation of law. There cannot further be any doubt that in an industrial adjudication, the management must show that all procedures for entering into a settlement have been complied with.

In Workmen of Delhi Cloth and General Mills Ltd. Vs. The Management of Delhi Cloth and General Mills Ltd., , the Supreme Court held that a settlement which does not conform to the provisions of Rule 58 of the Industrial Disputes (Central) Rules, is illegal.

In Brooke Bond India Ltd. Vs. The Workmen, , it was held that the settlement must be entered into on behalf of the workmen by the persons authorised in that behalf.

In the writ application, the Petitioners, have not raised the question that the persons who entered into the purported settlement on their behalf were not so authorised. The persons who signed the settlement on behalf of the workmen are also not parties to this writ application. In absence of such a plea having been raised iii the writ application, it is not possible for this Court to hold that the settlement was illegal as the persons who signed the settlement were not authorised by the workmen to do so.

The Petitioners have merely stated the settlement is not genuine.

This Court in exercise of its writ jurisdiction under Article 226 of the Constitution cannot decide such a question. In Basant Kumar Sarkar and Others Vs. Eagle Rolling Mills Ltd. and Others, , it has been held that writ court should not convert itself into a court for deciding industrial dispute.

In this view of the matter, it has to be held that the settlement as contained in Annexure-7 to the writ application is prima facie legal and, thus, binding on ail the workmen.

Ref. Question No. D:

A settlement admittedly entered into in view of the provisions contained in Section 18 of the Industrial Dispute Act binds all workmen who are concerned and connected with the industrial dispute. However, if a settlement violates the fundamental right of a citizen, the same is liable to be struck down. In the event, the Petitioners are right in their contentions that by reason of the said purported settlement, as contained in Annexure-7 to the writ application, they having been denied their right of equality before law and equal protection of law insofar as their right to receive equal pay for equal work is concerned, evidently, a writ petition shall lie despite existence of such a settlement.

In Mackinnon Mackenzie and Co. v. Audrey ''D'' Costa reported in 1987 Lab & I.C. 961, the Court held:

Thus if the settlement can be held to yield in favour of equal remuneration, the same must yield to Article 14 and 16 of the Constitution. The Petitioner must therefore, be held to maintain this writ application on the ground that they have been denied equality of law and equal protection of law despite the acceptance of a valid settlement, if a discrimination has been created thereunder.

In A.V. Nachane and Others Vs. Union of India (UOI) and Another, , the Supreme Court was deciding a converse case. In that case it was held:

But the burden of establishing hostile discrimination was on the Petitioners who challenged the Amendment Act and the rules. It was for them to show that the employees of the Life Insurance Corporation and the employees of the other establishments to whom the provisions of the Industrial Disputes Act were applicable were similarly circumstanced to justify the contention that by excluding the employees of the Corporation from the purview of the Industrial Disputes Act they had been discriminated against.

A writ petition would thus be maintainable if there has been a violation of fundamental right of a citizen under Article 14 of the Constitution of India read with Article 39(d) thereof, if one has been able to prove that there has been a discrimination with regard to the applicability of the doctrine of equal pay for equal work. However, it must be stated that such a writ petition will not be maintainable, for invoking the abstract doctrine of equal pay for equal work as would be indicated hereinafter.

In Dhirendra Chamoli and Anr. v. State of U.P. 1986 Vol. 1 SCC 637, the writ petition had been initiated on the basis of a letter filed by him and one Rohan Singh who were employee of the Nehru Yuvak Kendra. They claimed that they along with others were engaged by the Nehru Yuvak Kendra as casual workers on daily wage basis, and were doing the same work as were performed by the class IV employees appointed on regular basis, but were not being given the same salary and allowances is were being paid to the regular class IV employees. On behalf of the Government of India it was stated that the Nehru Yuvak Kendra had been started at different places in the country as temporary organisation and they had not been made permanent, with the result that there were no sanctioned posts of Class IV employees and the employees who were engaged in the Nehru Yuvak Kendra were taken as casual employees on daily wage basis. It was, however, conceded on behalf of the Central Government that the persons engaged by the Nehru Yuvak Kendra performed the same duty as was performed by the Class IV employees appointed on regular basis against the sanctioned post. It was urged on behalf of the Central Government that those persons had taken up the employment knowing fully well that they will be paid only daily wages and, therefore, they cannot get more. This argument was not accepted by the Supreme Court and it was observed that it was an all too familiar argument with the exploiting class and a welfare State committed to a socialist pattern of society cannot be permitted to advance such an argument. Article 14 of the Constitution of India declares that there shall be equality before law and equal protection of the law and implicit in it is the further principle that there must be equal pay for the work bf equal value. The Supreme Court allowed the writ applications and directed the Central Government to pay to those persons who were employed by the Nehru Yuvak Kendra and Who were performing the same duties as class IV employees, the same salary and conditions of service as were being received by the Class IV employees except the regularisation which could not be done since there were no sanctioned posts.

In Randhir Singh Vs. Union of India (UOI) and Others, , the Supreme Court held:

There cannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. If anything, by reason of their investiture with the powers, functions and privileges of a police officers, their duties and responsibilities are more arduous. In answer to the allegation in the petition that the driver-constables of the Delhi Police Force perform no less arduous duties than drivers in other departments, it was admitted by the Respondents in their counter that the duties of the driver constables of the Delhi Police Force were onerous. What then is the reason for giving them a lower scale of pay than others? There is none. The only answer of the Respondents is that the drivers of the Delhi Force and the other drivers belong to different departments and that the principle of equal pay for equal work is not a principle which the Courts may recognise and act upon. We have shown that, the answer is unsound. The clarification is irrational. We, therefor, allow the writ petition and direct the Respondents to fix the scale of pay of the Petitioner and the drivers constables of the Delhi Police Force at least on part with that of the drivers of the Railway Protection Force. The scale of pay shall be effective from 1.1.1973 the date from which the recommendation of Pay Commission were given effect to.

In the case of Inderpal Yadav. v. Union of India reported in 1985 P.L.J.R. 36 (SC) the Supreme Court directed the Railway Administration to prepare a list of project casual labourer with reference to each division of the Railway and then start absorbing those with the longest service. The said direction was issued by the Supreme Court in view of well settled principles of first-come-last-go as enumerate in Section 25G of the Industrial Disputes Act, 1947.

In Daily Rated Casual Labour Employed under P and T Department Vs. Union of India (UOI) and Others, , it was held that the State cannot deny the casual labourers at least the minimum pay in the pay scale of regularly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees.

However, in some other decisions, the Supreme Court has struck a different view. Instate of U.P. v. J.P. Chaurasia and Ors. reported in AIR 1989 SC 19, it was held that although the quantity of the work may be the same but the quality may be different which cannot be determined by relying upon the averments in affidavit of interested parties. It was further held therein that equation of posts for equation of pay must be left with the executive government and should be determined by an expert body like Pay-Commissioner.

The Supreme Court proceeded to hold:

Apart from that it, higher pay scale to avoid stagnation or resultant frustration for lace of promotional avenues is very common in career service. There is selection grade for District Judge. There is a senior time scale in Indian Administrative Service. There is super time scale in other like services. The entitlement of these higher pay scales depends upon seniority-cum-merit or merit-cum-seniority. The differentiation so made in the same cadre will not amount to discrimination or the classification. It has a rational nexus with the object thereof. To hold otherwise, it would be detrimental to the interest of the service itself.

...In Federation of All India Customs and Central Excise Stenographers (Recognised) and others Vs. Union of India and others, Sabyasachi Mukherjee, J. said:

There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the different is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bone-fide, reasonably on an intelligible criteria which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination It is important to emphasis that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right.

And said (at p. 1300) of AIR:

The same amount of physical work may email different qualify of work, some more sensitive some requiring more fact, some less-it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated that either it is irrational or base on 10 basis or arrived malafide either in law or in fact.

In Umesh Chandra Gupta v. Oil and Natural Gas Commission reported in All 1989 SC 29, the Supreme Court held as follows:

The nature of work and responsibilities of the posts are matters to be evaluated be the management and not for the Court to determine by relying upon the averment in the affidavits of interested parties. We have stressed this point in a recent judgment (in Civil Appeal No. 56 of 1987) State of U.P. and Ors. v. J.P. Chaurasia and Ors. disposed of on 27th September, 1989 reported in AIR 1989 SC 19) al para 17. There we said:

the question depends upon several factors, it does not just depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily, it required among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear lo be the same or similar, but there may be difference in degree in the performance. The quantity of work may be the same, but quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the Executive Government. It must be determined by expert bodies like pay commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a commission or committee the court should normally accept it. The court should not try to tinker with such equivalence unless it is shown that it was made in extraneous consideration.

What applies to the Government and Government servants must equally apply to any management and its employees. If the management for good reason have classified the posts into two categories with different pay scales, the courts generally must accept unless it is demonstrated that it is patently erroneous either in law NOT fact.

In a recent decision in B. Krishna Bhat Vs. Union of India (UOI), the Supreme Court has refused to issue writ directing State to implement the directive principles as contained in Article 47 Bu the Constitution of India on the ground Bat the same are unenforceable.

In Y.K. Mehta v. Union of India reported in 1988 SC 1970 another Banch of the Supreme Court analysing Articles 14, 16, 311 and 39(d) of the Constitution of India held that the provision; for equal pay for equal work being in part IV of the Constitution; the same is not enforceable an the Government on its own accord should implement it. The question of discrimination will arise when the [State does not implement the same.

In V. Markandaya and Ors. v. State of Andhra a Pradesh and Ors. reported in 1939 3 SCC 191 the Supreme Court hell chat even if the work performed by two seat of employees are same, but if they have different Educational qualifications, one being graduate supervisors and the another being non-graduate supervisors an as the graduate supervisors have all along been treated as a separate Identity from the non-graduate supervisors, the question of granting any relief of equal pay to the non-graduate supervisors under Articles 39(d), 14 and 15 of the Constitution of India does not arise. In that case, the Supreme Court considered a; large number of its earlier decisions.

Reference in this connection in ay be Made also to the case of Inder Singh v. Vyas Muni Mishra reported in 1987 Suppl. SCC 257 ; State of Andhra Pradesh and Others Vs. G. Sreenivasa Rao and Others, ; V.S. Upadhyay v. Karnataka Power Corporation Ltd. reported in 1989 L.I.C. 791 and in All India Sainik School Employees Association v. Defence Minister and Ors. reported in 1989 1 Suppl. SCC 205.

Recently, regain, the Supreme Court in Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, , held upon consideration of its curlier decisions that the doctrine of equal pay for equal work does not come within the purview of Article 14 of the Constitution of India as an abstract doctrine, but if any classification is unreasonable and/or if unequal pay is based on no classification, then Article 14 will at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work.

It was held:

In other words, where unequal pay has brought about a discrimination within the moaning of Article 14 of the Constitution, it will be case of ''equal pay for equal work'' as envisaged by Article 14 of the Constitution if the classification is proper and reasonable and has a nexus to the object to be achieved. In doctrine of ''equal pay for equal work'' will no have any application even though the persons doing the same work are not getting the same pay. In short, so long as it is not a case of discrimination under Article 14 of the Constitution, the abstract doctrine of ''equal pay for equal work'' as envisaged by the Article 39(d) for the Constitution has no manner of application nor is it enforceable in view of Article 27 of the Constitution.

Recently again in Grih Kalyan Kendra Workers'' Union Vs. Union of India and others, , the Supreme Court herd as follows:

Equal pay for equal work is not expressly declared by the Constitution as a fundamental right but in view of the Directive Principles of State Policy as contained in Article 39(d) of the Constitution "Equal pay for equal work" has assumed the status of fundamental right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 and 16 of the Constitution. Equal pay for equal work and providing security for service by regularising casual employment within a reasonable period has been accepted by this Court as a constitutional goal to our socialistic pattern. It has ceased to be a judge made law as it is the part of the constitutional philosophy which ensures a welfare socialistic pattern or a State providing equal opportunity to all and equal pay for equal work for similarly placed employees of the State. This Court has zealously enforced the fundamental right of equal pay for equal work in effectuating the constitutional goal of equality and social justice in a number of decisions see : Randhir Singh v. Union of India Daily Rated Casual Labour Employed under P. & T. Department v. Union of India; Dhirendra Chamoli v. State of U.P. Surinder Singh v. Engineer-in-Chief CPWD, R.D. Gupta v. Lt. Governor Delhi Administration, Bhagwan Dass v. State of Haryana Jaipal v. State of Haryana Dharwad District P.W.D. Literate Daily Wage Employees Association v. State of Karnataka. Therefore, the principle of equal pay for equal, work even in an establishment which is an instrumentality of a State is applicable to its full vigour.

The question then a rises whether the Respondents have practised discrimination in denying the employees of the Kendra, pay which the Union of India has been paying to other similarly placed employees doing the same or similar work. This question is of primary importance which requires investigation of facts. Unless, it is demonstrated that the employees of the Grih Kalyan Kendra are discriminated in matters relating to pay and other emoluments with the other similarly placed employees, the principle of equal pay, for equal work cannot be applied While considering this question, it is not necessary to find out similarity by mathematical formula but there must be a reasonable similarity in the nature of work, performance of duties, the qualification and the quality of work performed by them. It is permissible to have classification in services based on hierarchy of posts, pay scale, value of'' work and responsibility and experience. The classification must, however, have a reasonable relation to the object sought to be achieved. In Federation of All India Customs and Central Exise Stenorgraphers v. Union of India Saybasachi Mukharji J. as he then was observed : SCC p. 100. para 7.

...there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bonafide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right.

Elaborating the aforesaid observation the learned Judge further observed thus (SCC pp. 104-05, para 11).

The same a mount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less-it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or in fact.

From the discussions made herein-before, in my opinion, the law can be summarised thus. The doctrine of equal pay for equal work in not be invoked when it attracts Articles 14 and 16 only, irrespective of the applicability Article 39(d). The question whether a particular set of employees are entitled to a pay scale admissible to other employees of similar rank will not merely depend upon Either the nature of work or volume of work done by such employees, but it will involve an evaluation of the duties and responsibilities of the respective posts. It is possible that functions attached to two posts may appear to be the same or similar, but there may be difference in degrees in performance. In a case where the quantity of work may be the same but quality may be different, the doctrine of equal pay equal work may not be Applicable. Normally the question of equality of pay should be left to the expert bodies who are the best judge to evaluate the nature of duties and responsibilities of the post. Thus the doctrine of equal pay for equal work should rot be applied mechanically.

In this case, however, the Petitioners have questioned the settlement as contained in Annexure-7 to the writ application itself on the ground that the same u violative of Ai tide 14 of the Constitution.

In this case, there is a vague denial in the affidavit that the Petitioners do not perform the similar job as is performed by the other workmen. Admittedly, the Petitioners have been working for a period of about 20 pars. In the counter affidavit filed on behalf of the Respondents, it is stated:

The nature and job of regular employees of Respondent No. 1 are different and superior than the Petitioners. The Petitioners are only helping hands to the regular employees. The Petitioners are not entrusted with any independent assignment, therefore, they are not entitled to the same pay which is being given to the regular employees.

It has further been stated that the Petitioners pre getting the salary admissible to temporary workmen as per Annexure 7 to the writ application. It has been stated in the counter affidavit that the Petitioner Nos. 2 to 87 are helpers and unskilled works. The Petitioners have filed a rejoinder to the said counter affidavit.

The Petitioners in their writ petition as also in the rejoinder to the counter affidavit have stated that they have all along been performing the same and similar work like a regular worker. It was further stated that the statements made in the counter affidavit having been verified by the Manager (Personnel & Administration) as true to his knowledge should not be accepted as he cannot have any personal knowledge about the work done by the Petitioners.

The fact that the Petitioners nave been working for a long time and are in continuous service for about 20 years has not been denied by the Respondents except in the case of Petitioner No. 30. The statements of the Respondents appear to be contradictory to each other. In respect of the matter of regularisation, they have stated that they regularised the services of 150 persons during the years 1981-1983 and another 100 persons in terms of purported settlement dated 20.6.87 as contained in Annexure 7 to the writ application on the basis of seniority and on the basis of qualification. Thus in relation to the unskilled workmen, such a. question will not arise.

In Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, , it was held that by reason of three years'' service ignoring artificial breaks for snort period/periods, the workmen must have Required suflicient experience in the actual discharge of duties attached to the post held by them.

It, thus, does not appeal to be plausible to hold that majority of the Petitioners/unskilled workmen who have been carrying out the same job for about a period of 20 years would not be doing the same job as that of the regular unskilled workmen. Similar must be the case of skilled workmen. The persons who are skilled or semi skilled workmen and have been performing their duties for a long period of 20 years must be held to have gained sufficient experience and thus it cannot be said that either the quantity or quality of their job is different.

It is not a case where this Court has been called upon to consider whether quality of job, educational qualification, responsibilities, reliability and other similar such factors in the matter of grant of different scales of pay are in-question. It, thus, cannot be said, in view of the decision of the Supreme Court in Bhagawati Prasad''s case (supra) that Petitioners are not doing the similar job as that of the persons who have been regularised.

In this connection it may be mentioned that at one stage the Respondents have contended in their counter affidavit that the case of all the Petitioners were considered in the matter of regularisation of their services; whereas in another paragraph they contended that the Petitioners challenged the settlement (Annexure-7) and pursuant thereto they did not apply for being regularised and, therefore, their cases were not considered. If the Petitioners were entitled to be considered on the basis of their experience, they could not have been kept out of consideration only because they did not file an application therefor.

The stand taken by the Respondents also appears to be wholly unreasonable and irrational so as to attract Article 14 of the Constitution in as much as they purported to have proceeded on the basis of designating the workmen, whose services were not regularised, as temporary workers. It is, therefore, clear that they themselves have not acted upon the purported tradewise seniority.

It terms of the provisions of the Industrial Disputes Act, 1947, only a few types of workmen are contemplated, namely, skilled, semiskilled, unskilled workers etc. So long as the employees of different trades do not constitute a separate cadre, all the employees are entitled to be treated equally on the touchstone of the ciriteria of skilled, semi-skilled and unskilled workmen and not on any other basis.

Even in Clause 3 of the settlement as contained in Annexure 7 the writ application it was stated that temporary workers who do not for voluntary retirement scheme would be designated as temporary workers and their scales of pay would be as follows:

(i) Unskilled Rs. 900-11-1010.

(ii) Semi-skilled Rs. 940-12-1060.

(iii) Skilled Rs. 1000-15-1150.

However, such temporary workers were also held to be entitled to certain benefits as mentioned therein.

Thus, it is clear that the scales of pay for temporary employees in respect of unskilled, semi-skilled workers have been fixed vis-a-vis regular employees not on any other basis but the basis as to who should have been regularised in services.

It has not been stated that so far as the Petitioners are concerned for the purpose of performance of their job they were required to have particular educational qualification or any other qualification. It has also rightly been contended on behalf of the Petitioners hat the affidavit on behalf of the Respondents to support of the contention that the Petitioners do not perform equal job as performed to the regular employees must also be rejected on the ground that the person who distributes lie job or who is supervisor of the Petitioners and the Respondents did not swear any affidavit.

In this case, the Petitioners had been raising the contentions that they are entitled a equal pay for equal job again and again, they came to this Court earlier in C.W.J.C. 60/87R and the said writ application was permitted to be withdrawn only on the assurance made on behalf of the Respondents that all their grievances have been met. It is unfortunate that such a statement had been made (the Bar which latter on was found to be incorrect.

In this case, the Petitioners have all long been raising their grievances. Even before filing this writ application, demands were raised on behalf of the Petitioners by letter 1.10.86 as contained in Annexure-4 to the writ application; one of the demands was that all the daily rated workmen should be paid was or facilities at par with regular employees i the basis of equal pay for equal work. The Petitioners despite raising of a demand were not favoured with any relief.

In Mackinnon Mackenzie and Co. Ltd. v. Audrey D. Cost and Anr. reported in 1987 LAB. I.C. 961 held as follows:

It, however ought not to make any difference for purposes of the application of the Act when once it is established that the lady Stenographers were doing practically the same kind of work which the male Stenographer where discharging. The employer is bound to pay the same remuneration to both of them irrespective; of the place where they were working unless it is shown that the women are not fit to do the work of the male Stenographer. Nor can the management deliberately create such conditions of work only with the object of driving away women from a particular type of work which they can otherwise perform with the object of paying them less remuneration elsewhere in its establishment. In the present case the place where the employees worked is irrelevant for purposes of Section 4 of the Act.

Taking thus all aspect of the matter, I am of the view that the Petitioners are at least entitled to the benefit of equal pay for equal work with effect from the date the persons junior to them had been put in similar scale of pay by reason of regularisation of their service.

In Rabindra Dubey and Ors. v. Hon''ble the Chief Justice of the Patna High Court in C.W.J.C. 1475 of 1935(R) disposed of on 8th August, 1990, a Division or this Court of which I was a member granted similar relief to the Petitioners thereof.

71A. In Bhagwan Dass and Others Vs. State of Haryana and Others, , the Supreme Court directed that the Petitioners thereof be paid difference in salaries with effect from the date of institution of the writ application. However, in this case, as noticed hereinbefore, various persons who might have been junior to the Petitioners had been put to the similar scale of pay purported to be on the ground of regularisation of their services and, thus, in my opinion, it would be just and fair if the Respondents are directed to pay the difference of salary of the Petitioners as and when the persons who were juniors to them, considering the length of service and not on the basis, of tradewise seniority, have been put on the regular scale of pay.

Re-Question No. E:

It is true that in the decisions cited on behalf of the Petitioners, the Supreme Court directed framing of a scheme in some cases for regularisation of the employees in the manner laid down therein.

In Daily Rated Casual Labourers employed in P&T Deptt. the Supreme Court directed preparation of a scheme for absorbing the casual labourers. The said order was passed keeping in view that the Respondents thereof is a Post & Telegraph Department and thus it should not take recourse to exploitation of labour. It was further held that there is so much development to be carried out in the Communication Department and, thus, many workers are needed and as such it is possible to take work from the skilled, semi-skilled and unskilled staff by shifting them from one department to another when there is no work to be done in a given place.

In Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, as noticed hereinbefore, it was directed that as the Petitioners before the Supreme Court satisfied the requirement of three years service; 40 workmen should be regularised with immediate effect and remaining 118 Petitioners should be regularised in a phased manner before April 1, 1991.

In The Dharwad Distt. P.W.D. Literate Daily Wages Employees Association and others, etc. Vs. State of Karnataka and others etc., the Supreme Court gave direction to take into onsideration the anxiety of the Petitioners who has waited too long to share the equal benefits mandated by Fart IV of the Constitution in respect of their employment as well as the constraints arising out of or connected with availability of State resources.

In Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, , a Division Bench of the Supreme Court directed regularisation of services keeping in view that the workmen concerned had earlier been working in Public Health Engineering Department and their services were continued and/or transferred to Water and Waste Water Authority constituted under an Ordinance.

The Supreme Court in ail those cases were considering the cases of employees of P&T. Deptt. or Railway or other Permanent Department of the Union of India, where the requirement of the job is permanent in nature directed regularisation of their services. In the cases of P&T. Department, the Supreme Court took into consideration that even if the requirement of a particular class of workers in department is disminished, then keeping in view the requirement of man-power in the development of P&T. Deptt. their services can be transferred from department to another.

Unfortunately, however, in none of the aforementioned cases, the Supreme Court considered its earlier binding precedents on the question of manner of regularisation, that is State of Mysore and Another Vs. S.V. Narayanappa, and R.N. Nanjundappa Vs. T. Thimmiah and Another, . The aforementioned judgements of the Supreme Court was followed by a three Judge Bench or the Supreme Court in B.N. Nagarajan and Others Vs. State of Karnataka and Others, .

In R.N. Nanjundappa (supra), the Supreme Court held'' that if an appointment is made in infraction of the rules or if it is in violation of the provisions of the Constitution, such appointments being illegal, the same cannot be regularised. It was further held that ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. It held Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. (Underlining is mine for emphasis)

The Supreme Court in that case negatived he contention that regularisation in employment is possible by taking recourse to Article 62 of the Constitution of India in the following words:

In the present case, the contention on behalf of the Respondents that the regularisation was itself a mode of appointment under Article 162 of the Constitution is unsound. The Rules came into existence in the present case in 1964. The regularisation was made in the year 1967. The regularisation was made with effect from 1958. Therefore, the Rules became applicable. The regularisation in the present case was also bad because even without specific methods of requirement appointments could be made only by selection or promotion or transfer from equivalent grade. The method of recruitment and qualification for each State Civil Service was to be se. forth in the rules of recruitment of such service specially ma i dc in that behalf.

The Supreme Court held that Article 162 not confer power to regularise nor does it confer power on the Government to make rules for recruitment or conditions of service. It was further held:

All that the Public Service Commission did was to regularise the appointment to the post of the Principal. The regularisation by the State of the appointment is with effect from 1958. This regularisation is bad for the following reasons. First, regularisation is not itself a mode of appointment. Secondly, the modes of appointments are direct recruitment or selection or promotion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade by transfer from any other service of the State.

In B.N. Nagarajan and Others Vs. State of Karnataka and Others, it was held:

It was argued that the regularisation of the promotion gave it the colour of permanent and the appointments of the promotees as Assistant Engineers must it here-fore be deemed to have been made substantively right from the 1st of November, 1956. The argument, however is unacceptable to us for two reasons. Firstly, the words ''regular'' or ''regularisation'' do not can note permanence. They are terms calculated to condone any procedural irregularities and are meant to care only such defects as are attributable to the methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of tenure of the appointments.

(underlining is mine for emphasis)

In none of the cases referred to by the learned Counsel for the Petitioner, the aforementioned authoritative pronouncements of the Supreme Court which have defined the term ''regular'' and ''regularisation'' were taken into consideration. The decisions of the Supreme Court, referred to on behalf of the Petitioners therefore, will have to be considered from that angle.

Thus, regularisation of casual labourers do not mean that they; can be permanently absorbed in the State service irrespective of the fact that there exists my vacancy or not.

It has been held that Respondent No. 1 is a State. It, therefore, is; bound to give equal opportunity of employment to all the candidates eligible therefore in iterms of Articles 14 and 16 of the Constitution. Permanent absorption of casual employees in the State service in absence of any statutory provision or a policy decision, is, thus impermissible. In a given situation, it may be permissible for the Supreme Court to lay down a scheme or direct a scheme for permanent absorption of its employees be made by the State. Such a power exists in the Supreme Court by reason of Article 142 of the Constitution of India as it may pass any decree or order for giving complete justice to the parties and such decree or order would be binding upon the State.

Similarly, in the industrial adjudication an Industrial Tribunal or the Labour Court may direct the employer to absorb casual workmen is the permanent services where the same would not offend Articles 14 and 16 of the Constitution. The power of the Industrial Tribunal in a Reference with regard to interpretation of the conditions of service is wide. In a given situation in an industrial adjudication it is possible to hold that the demand of the workmen being absorbed in the regular services of the Management is justified or it may also hold that the action on the part of the Management in refusing to absord for a long time amounts to unfair labour practice. Such adjudications have to be made by the Industrial Tribunals in a Reference in the facts and circumstances of each case.

However, in my opinion in this case it is not possible for this Court to give such a direction.

Articles 16 of the Constitution of India provides that all citizens of India are entitled to get equal opportunity for the purpose of obtaining employment in State service

In order to fulfil such a condition, it is necessary to consider the cases of all citizens who are eligible to be appointed. For that purpose, it is not only necessary to call for the names from the Employment Exchange but the same in some cases also requires due advertisement of posts in newspapers by notifying the vacancies and the requisite qualifications therefore so that all eligible candidates may apply for their appointment in the said posts.

This aspect of the matter has been considered by this Court in various decisions. Reference in this connection may be made to Mahender Ram v. Dy. Commissioner Palamau reported in 1989 BLT 27.

In Satish Kumar and Others Vs. State of Bihar, , a Division Bench of this Court while dealing with the case of termination of service held as follows:

It may be mentioned that full Bench of this Court in the case of Bijoy Kumar Bharti and Others Vs. State of Bihar and Others, had held that even if the order terminating the service of a temporary employee says that his appointment was illegal, that does not amount to a sitgma so that such an order becomes justiciable. In that very judgment it has been observed that of course the person affected may in an appropriate case satisfy this Court that his initial appointment although on temporary basis was not illegal. In the instance case, I have already pointed out that the stand of the Respondents is that before making the appointments of the Petitioner there was no advertisement in any newspaper inviting application from people in general and the appointment are said to have been made on buff sheet issued by the then Honorary Secretary. The procedure followed in making appointment of the Petitioners not only contravened the direction of the Registrar but also was in violation of requirement Under Article 14 and 16 of the Constitution. It need not be pointed out that statutory bodies while making appointments are required to give opportunity to eligible persons for being considered by inviting applications through proper notice.

In Udai Kumar Sharma v. Registrar operative Societies reported in 1989 PLJR this Court held as follows:

Even according to the submission of Mr. Bajla the Petitioner is entitled to preference being a retrenched employee which would mean that preference shall be given to such retrenched employees vis-a-vis other general candidate. From the facts of the case as noticed hereinbefore, it is evident that even the requisite formalities for appointment of a Government servant was not complied with. In terms of Article 16 of the Constitution, every citizen of India, subject to the exception envisaged therein, is entitled to be considered for appointment. It is now well known that the State while offering appointment must give opportunity to all citizens who are qualified therefor. Any violation of such a rule would attract Article 16 of the Constitution. la certain circumstances, in terms of the policy decision of the State on by invoking the doctrine of distributive justice the members of the weaker section may be given preference but the same also must conform to the constitutional mandate contained in Articles 14 and 16 of the Constitution.

It is now well known that public employment is a property and thus all the citizens must be given equal opportunity to be considered for appointment which once he is eligible.

In terms of Articles 14 and 16 of the Constitution of India all the citizens of India entitled to get equal opportunity for obtaining employment by the State and thus in absence of any statutory provisions or a policy decision, the question of appointment on substantive capacity against parmanent vacancy in violation of Articles 14 and 16 of the Constitution must be held to be impermissible, Such a course of action may however be taken where the employer manages an industry and the casual employees therein gets a statutory right by working therein for a long time.

This aspect of the matter has also recently been considered by the Sikkim High Court in Dijendra Singh v. State of Sikkim 1990 Lab.IC 43.

In Rakesh Ranjan Verma and Ors. v. State of Bihar and Ors. reported in 1991 (1) PLJR 398, N.P. Singh, J. as His Lordship then was, held:

It has been pointed out by the Supreme Court from time to time that whenever vacancies exist in public offices, an opportunity should be given to all persons, who become eligible on the date such posts are to be filled up for being considered for appointments against such posts. It has also been impressed by Courts that primary object of the authority making appointments should be to select the best amongst the applicants subject to the policy of reservation for being appointed against such posts. In the case of State of U.P. and Anr. v. Ram Gopal Shukla AIR 1981 SC 1041 statutory rule framed under Article 309 of the Constitution giving validity to a State Penal was held to be violative of Articles 14 and 16 of the Constitution and so ultra vires. In that connection, it was said:

These letters and objections point out unmistakably that the selection was unnecessarily postponed only to accommodate the 300 persons included in the Select List of 1966. There appears to be no rational basis for such a departure from the ordinary operation of the 1970 Rules which envisaged the preparation of a new List every year and for singling out one particular list for according preferential treatment to the persons whose names were contained therein. The classification in this case, therefore, cannot be said to be a reasonable classification based on intelligible differentia having a nexus to the object sought to be achieved.

It was further said:

A rule which contemplates that unless the list of 300 persons is exhausted no other person can be selected, obviously is unjust and it deprives other persons in the same situation of the opportunity of being considered for promotion.

It was further held therein that in the Service jurisprudence, normally, there arc two modes of recruitment; one by direct recruitment and the other by promotion. Yet in another decision in Jai Jaiyendra Kumar Singh and Ors. v. The Bihar State Electricity Board and Ors. reported in 1991 (1) PLJR 406 the same Bench held that an employee posted in different cadre of his service under exigencies of the situation cannot'' be absorbed in different cadre of service nor would he be entitled to seniority with retrospective effect.

Right to work is not a fundamental right but a right to be considered for appointment is. Such a right to be considered for appointment, as enshrined under Article 16 of the Constitution must be held to be available to all persons who arc eligible therefor. Any appointment which does not conform to the requirements of Article 16 of the Constitution, therefore, cannot be said to be a valid appointment and consequently any back door method adopted to confer any permanency in the job in violation thereof cannot be encouraged by the High Court.

It is true that ad hocism should come to an end. However, the same does not mean that the persons who have obtained employment by taking recourse to back door method may be permit fed to be permanently absorbed only because they have put in work for some time.

The same view has been taken by two Division Benches of this Court of which I was a member. In Lalan Prasad Singh v. State of Bihar L.P.A. 66/90R disposed of on 18th September, 1990 this Court approved the decision of a learned Single Judge of this Court in Lalan Prasad Singh''s case as reported in 1990 BLT 237.

Again a Division Bench of which was a member in Kamal Kumar Sinha Vs. Indira Gandhi Institute of Medical Sciences and Others, took the same view.

Yet recently in Satyanarayan Sharma and others Vs. National Mineral Development Corporation Ltd. and others, , the Supreme Court held:

We do not find any ground to interfere with the High Court''s decision in view of the clear findings supported by the evidence that there are no vacancies or work available in the establishment for absorption of the Petitioners and that for quite some time they have been continued on rolls and paid inspite of there being no work for them. On these facts, the question of directing their absorption and regularisation does not arise. The Principle of regularisation of a daily rated workmen and payment to him of the pay equal to that of a regular workmen arises only when the daily rated workmen is doing the same work as the regular workman and there being a vacancy available for him, he is not absorbed against it or not even paid the equal pay for the period during which the same work is taken from him. On the clear findings in this case, this is not the position. This petition must; therefore, fail.

In Nand Kishore Raut and Ors. v. State of Bihar and Ors. reported in 1991 B.B.C.J. 139 : 1991 (2) PLJR S. Ali Ahmad, J, speaking for the full Bench held that where excise constables, were appointed on ad hoc basis by the Excise Superintendent who ns not the competent authority therefor, been services of such persons are terminated, they cannot be held to be retrenched constables. The Full Bench distinguished the decision of the Supreme Court reported in Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, .

From the decisions of the Supreme Court as also of this Court, as referred to Hereinbefore, it will thus be evident that any appointment which was made by a person laving no authority to do so or the appointments which have not been made following the mandatory provisions of the Recruitment ''Rules and Articles 14 and 16 of the Constitution, such appointments should be held to be nullity. In this view of the matter, in my opinion, this Court in exercise of its writ jurisdiction cannot direct regularisation of the services of the employees when the same would be violative of Articles 14 and 16 of the Constitution.

In A. Antulay v. R.S. Nayak and Anr. reported in 1988 1 SCC 602 a Constitution bench of the Supreme Court held that if a judgment which has been rendered by too Supreme Court., ignoring a provision of law, the same must be held to have been rendered per incuriam and is not binding upon mother bench.

In Municipal Corporation of Delhi v. Gurnam Kaur reported in 1983 1 SCC 101, the Supreme Court held as follows:

Quotability as ''law'' applies to the principle of a case, its ratio decidendi. The only thing in a judge''s decision binding as an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The tasks of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, is could not be assumed whether a similar direction made by this Court in Jamna Das case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das case was made not only with the consent of the parties but there was an interplay of various factors and the court was moved by compassion-to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. The court no doubt made incidental observation to the Directive Principles of State Policy enshrined in Article 38(2) of the Constitution and said:

Article 38(2) of the Constitution mandates the State to strive to minimise amongst others, the inequalities in facilities and opportunities amongst individuals. One who tries to survive by one''s own labour has to be encouraged because for want of opportunity destitution may disturb the conscience of the society. Here are persons carrying on some paltry trade in an open space in the scorching heat of Delhi sun freezing cold and torrential rain. They are being denied continuance at that place under the specious plea that they constitute an obstruction to easy access to hospitals. A little more space in the access to the hospital may be welcomed but not at the cost of some one being deprived of his very source of livelihood so as to swell the ranks of the fast growing unemployed. As fir as possible this should be avoided which we propose to do by this short order.

This indeed was a very noble sentiment but incapble of being implemented in a fast growing city like the Metropolitan City of Delhi where public streets are overcrowded and the pavement squatters create a hazard to the vehicular traffic and cause obstruction lo the pedestrians on the pavement.

Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without agreement without Reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachment from any public place like pavements or public streets and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per curiam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald editor of the Salmond on Jurisprudence 12th edn. explains the concept of sub-silentio at p. 153 in these words:

A decision is passed sub-silentio in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A which it considers and pronounces upon, it may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome the decision is not an authority on point B. Point B is said to pass sub-silentio.

In Gerard v. Writh of Paris Ltd. (K) the only point argued was on the question of priority of the claimant''s debt and on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order properly be made on an account standing in the name of liquidator. When, there fore this very point was argued in a subsequent case before the court of Appeal is Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. the court held itself not bound by its previous decision. Sir Wilfrid Greene M.R. said that he could MC help thinking that the point now raised had been deliberately passed sub-silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by tot earlier court before it could make the order which it did, nevertheless, since it wit decided ''without argument'' without reference to the crucial words of the rule and without any citation of authority'' it was not binding and would not be followed Precedents sub-silentio and without argument are of no moment. This rule was ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicts varies with the type of dictum. Mere casual expressions carry no weight at all. No every passing expression of a judge, how ever eminent, can be treated as an ex-cat-hedra statement, having the weight o authority.

Recently again in Union of India (UOI) and Another Vs. Raghubir Singh (Dead) by Lrs. Etc., after exhaustive, study with regard to law of precedent and treating the history thereto; the Supreme Court laid down the law relating to value of precedent but stated in no uncertain terms that in appropriate case, particularly when the earlier decisions of the court or the relevant provisions of the law were not brought to the notice of the Court, the judgment rendered therein shall not be binding upon a subsequent bench.

The Respondents undertake contract job. Its requirement therefore of permanent employees will have to be judged by taking Bo consideration the term of the contract, the nature of the contract, the location therefor. As it does not have any permanent establishment in the matter of execution of control like Railway authorities, Post office or By other statutory Board, it would be for the Respondent No. 1 company to fix its strength of service by constituting permanent cadres.

The question as to what would be the requirement of permanent staff of Respondent No. 1 in a given situation or whether it Us taken recourse to unfair labour practice Knot cannot be decided in a writ application. As noticed in Satya Narain Sharma''s case (Supra), the Supreme Court itself held that a Person cannot be directed to be absorbed in permanent service unless there is a vacancy therefor. Such a matter can only be reserved by raising an industrial dispute and if a reference is made by the appropriate Government, as in that event it would be possible for the Industrial Tribunal to consider the evidence brought on record by both the parties. Before b a finding is arrived at, the parties may required to adduce parole evidence before the Industrial Forum.

A reference can also be made by the Impropriate Government for adjudication by a tribunal as to whether the purported settle-Spent as contained in Arnexure-7 to the writ Explication was genuine, valid and legal or not.

This Court''s jurisdiction under Article 226 of the Constitution of India cannot be invoked for deciding such a question which may conveniently be adjudicated by the Industrial Tribunal. It is in this sense that the Supreme Court in Basant Kumar Sarkar and Others Vs. Eagle Rolling Mills Ltd. and Others, held that a writ court cannot undertake an industrial adjudication.

Taking into consideration alt aspects of the matter, thus I am of the view that this Court cannot issue any writ upon the Respondents directing the Respondents to absorb the Petitioners permanently in their services.

In the result, this writ application is allowed in part and to the extent mentioned hereinbefore. In view of the fact that the Petitioners had to withdraw their earlier writ application and in view of the assurances of the Respondent which was found to be wrong, they are also entitled to exemplary costs which is assessed at Rs. 5000/-